Fepuleai v Minister for Home Affairs
[2021] FCA 277
•17 March 2021
FEDERAL COURT OF AUSTRALIA
Fepuleai v Minister for Home Affairs [2021] FCA 277
File number(s): VID 689 of 2020 Judgment of: KERR J Date of judgment: 17 March 2021 Catchwords: MIGRATION – application for review of decision of Minister to cancel a Class TY Subclass 444 Special Category (Temporary) visa – visa cancellation on character grounds – where Minister based much of his decision making upon the content of a Victoria Police report – whether the Minister misunderstood or misconstrued key evidence and, in doing so, misdirected himself in the exercise of his power under s 501(3) of the Migration Act 1958 (Cth) – no jurisdictional error – no more than a derisory chance that a different outcome could have been reached had the Minister dealt with [46] of the Victoria Police report differently – application dismissed Legislation: Migration Act 1958 (Cth) s 501 Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 46 Date of hearing: 17 March 2021 Counsel for the Applicant: Mr A Smorchevsky Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the Respondent: Ms C Symons Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 689 of 2020 BETWEEN: ANDREW TOVIA FEPULEAI
Applicant
AND: MINISTER FOR HOME AFFAIRS
Respondent
ORDER MADE BY:
KERR J
DATE OF ORDER:
17 MARCH 2021
THE COURT ORDERS THAT:
1.The Applicant’s Originating Application filed 22 October 2020 be dismissed.
2.The Applicant pay the Respondent’s costs as agreed or in default of agreement as assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)KERR J:
The applicant is a national of New Zealand. He was born on 17 March 1983. He has resided in Australia for 9 years since 16 June 2002, save for three short overseas trips.
Victoria Police became aware of the Applicant in October 2016, when he was first suspected by it of being a member of the Hells Angels Outlaw Motorcycle Gang (Hells Angels), a group that the police refer to as having been involved in criminal conduct. In the course of a Custody Assessment on 14 February 2018 the Applicant confirmed he was a “patched member” of the Hells Angels.
The Applicant rose rapidly in the hierarchy of that club. By October 2018 he had become Sergeant at Arms of its Darkside Chapter. In that position he was responsible for enforcing discipline over that chapter’s members as directed by its then president. In February 2020, the Applicant himself became the President of the Darkside Chapter of the Hells Angels.
On 8 October 2020, the Respondent, the Minister for Home Affairs and Minister for Immigration and Border Protection (the Minister) exercised his discretion to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) pursuant to s 501 of the Migration Act 1958 (Cth) (Migration Act). The relevant provisions of the Migration Act provide:
501 Refusal or cancellation of visa on character grounds
(3) The Minister may:
…
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
The relevant statement of the character test as was applied by the Minister in this case is s 501(6)(b) of the Migration Act:
501 Refusal or cancellation of visa on character grounds
…
(6) For the purposes of this section, a person does not pass the character test if:
(b) the Minister reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct;…
On 22 October 2020, the Applicant filed an application in this Court seeking certiorari to quash the Minister’s decision, an injunction restraining the Minister or his agents from removing him from Australia during these proceedings, and costs.
THE MINISTER’S DECISION
The Minister had been provided a visa cancellation insurance package dated 3 June 2020 under the title Motorcycle Gang Non-Citizen Submission by Victoria Police (the Report). The Report sets out the Applicant’s criminal history and summarises his involvement with the Hells Angels. It is uncontentious that the Minister based much of his decision making upon the content of the Report.
The Report begins with the following statement:
Victoria Police understand that [the Applicant] is not an Australian citizen. This product is designed to convey relevant Victoria Police information to the Department of Home Affairs to assist in determining if it is appropriate for [the Applicant] to hold an Australian visa.
The Report refers to intelligence held by Victoria Police regarding the Applicant and his involvement with the Hells Angels. It refers to his current and former positions, his influence and associations with senior members, as well as providing background information about the history of the Hells Angels, its activities and organisational structure. The Report refers to the Hells Angels as one of the most recognisable of what the Report refers to as Outlaw Motor Cycle Gangs (OMCG).
The Minister had also been provided with a report published by the Australian Criminal Intelligence Commission (ACIC) on 2 May 2019 in which the ACIC states that OMCGs are known to engage in extortion and threats of violence to generate a profit, for example, in conjunction with trafficking of highly profitable illicit commodities.
No challenge in these proceedings is made to the Minister’s conclusion that the criteria provided for in s 501(6)(b) of the Migration Act as are relevant to the cancellation of the Applicant’s visa on character grounds were satisfied. The Applicant does not put in issue the Minister’s finding at [18] that the Applicant is the President of the Darkside Chapter of an OMCG. Neither is it put in contest that in that capacity the Applicant “effectively controls the Hells Angels OMCG Darkside Chapter and their business interests”. Nor does the Applicant put in issue that it had been reasonably open to the Minister, on the basis of the Report and the ACIC document, to suspect that the Hells Angels was an organisation which had been, or was involved in, criminal conduct.
The Minister accordingly then gave consideration to whether the cancellation of the Applicant’s visa would be in the national interest. Paragraph [38] as is the focus of this review falls within the Minister’s reasoning under that heading. It is appropriate to set out the Minister’s reasoning under that heading in full such that the error alleged to have been made by the Minister in making that finding may be considered in its context. That reasoning with the relevant passage distinguished in bold is as follows.
NATIONAL INTEREST
25.I then considered the question of whether the cancellation of Mr FEPULEAI's visa is in the national interest recognising that the terms of s501(3) make it clear that the national interest consideration is separate and distinct from the question of whether or not Mr FEPULEAI passes the character test.
26.'National interest' is not defined for the purposes of s501(3). Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.
27.In Plaintiff 5156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 at [40], the High Court said that "What is in the national interest is largely a political question". To the same effect, a number of Federal Court decisions hold that the question of what is or is not in the national interest is an evaluative one that is entrusted by the legislature to the Minister to determine according to his satisfaction (provided that satisfaction is obtained reasonably).
28.I consider that matters of national interest include, amongst other things, the seriousness of the criminal or other conduct engaged in having regard to the circumstances and nature of the conduct, and any disposition imposed by the court in respect of the criminal conduct. I also find that matters of national interest include a consideration of the risk of a person reoffending or engaging in other serious conduct, and the harm which could flow if such a risk eventuated. Also, I consider national interest includes the expectations of the Australian community.
Criminal conduct
29.According to a Nationally Coordinated Criminal History Check released on 15 September 2020, Mr FEPULEAI was convicted by the Magistrates Court of Victoria on 3 December 2019 of Possess ecstasy (MDMA/MDA/MDEA/MDAs and Possess Cartridge ammunition without licence/permit and was fined $750.
30.Furthermore, on 12 February 2018 Mr FEPULEAI was convicted in the Magistrates Court of Victoria of Affray (Common Law) and Intentionally cause injury. He was sentenced to three months imprisonment. According to the Victoria Police report, Mr FEPULEAI was with a group of Hells Angels OMCG members at a 'Gentlemen's Club' and physically assaulted another patron. The victim sustained facial and rib fractures.
31.Mr FEPULEAI has a number road traffic infractions. The Victoria Police report states that on 19 July 2017 he was convicted of two counts of driving whilst authorisation suspended and use of unregistered motor vehicle and he was fined. On the same day he was fined $750 for failure to answer bail at the Magistrates Court of Victoria. Mr FEPULEAI was fined a further $750 for driving whilst suspended on 3 December 2019.
32.Mr FEPULEAI's continued criminal offending, albeit on a relatively minor scale, despite the imposition of a term of imprisonment, is indicative of his disrespect for Australia's laws.
Other serious conduct – Criminal Association – OMCG membership
33.I took into account the Government's views and strategies employed to combat organised crime and the activities of OMCGs. I had regard to the Australian Government's recognition that the activities of OMCGs are an issue of national concern, which adversely affects the Australian community, economy, Government, and way of life.
34.In doing so, I had regard to the establishment of the national taskforce named Operation Morpheus by the Australian Criminal Intelligence Commission's Serious and Organised Crime Co-ordination Committee and how the purpose of Operation Morpheus is to disrupt, disable and dismantle the criminal activities of Australia's highest risk Outlaw Motor Cycle Gangs (OMCGs) and their members. This reflects the view of ACIC that OMCGs remain one of the most high profile manifestations of organised crime in Australia.
35.I have also had regard to the Australian Institute of Criminology Statistical Report 08 published in 2018, titled: What are the taxpayer savings from cancelling the visas of organised crime offenders? I note the report found that 'OMCG members commit more crimes and more serious crimes than other organised crime offenders,' and 'Offences committed by OMCG members between the ages of 20 and 60 cost the community more than half a million dollars per offender...Most of these crime costs are the result of violent offences.'
36.I considered the information set out above under the 'character test', and the Victoria Police report which identified Mr FEPULEAI as the 'President' of the Darkside Chapter of the Hells Angels OMCG. As the 'President' of an OMCG chapter, Mr FEPULEAI has effective control over the club and its business interests. He also has control over all of the members of the Darkside Chapter and has the right to veto decisions made by members concerning club business. Mr FEPULEAI can authorise his subordinates, particularly the 'Sergeant at Arms', to use violence in dealing with other club members who have disobeyed club rules.
37.The Victoria Police report indicates that Mr FEPULEAI associates with other OMCG members, particularly the Red Devils OMCG and senior office bearers of other Hells Angels chapters. Mr FEPULEAI's degree of influence extends beyond his chapter's territory and across Australian state lines. Mr FEPULEAI has been observed by law enforcement authorities attending Hells Angels club members' funerals in different states/territories of Australia and participating in interstate 'runs'.
38.Taking into account Mr FEPULEAI's high rank and position of authority within the Hells Angels OMCG, I accept Victoria Police's assessment in their report that Mr FEPULEAI 'uses members of his OMCG as a way for him to avoid detection and any links to illegal activity and to make money for himself and the club'.
39.I note the Victoria Police report identifies that the Hells Angels OMCG business interests often include legitimate enterprises such as gyms, tattoo parlours, haulage companies and operations within the security industry. Most concerning is that the Hells Angels OMCG ventures also include illegitimate enterprises. According to the Victoria Police report, 'Numerous police and international intelligence agencies classify the Hells Angels as one of the "big four" motorcycle gangs, and contend that members carry out widespread violent crimes, including drug dealing, trafficking in stolen goods, firearms, and extortion, and are involved in prostitution’.
40.The Victoria Police report indicates, the Hells Angels OMCG have "engaged in serious conflicts rival clubs including the Bandidos, Comancheros, and Finks. The [sic] have also aligned themselves with (other) OMCGs including the Coffin Cheaters, Immortals, Red Devils, Satan's Soldiers and the Vikings as well as the Prisoners of War, a prison gang operating inside HMP Barwon.”
41.I find that Mr FEPULEAI has engaged in other serious conduct by being a member of the Hells Angels OMCG, and through his associations with other OMCG members and supporters. I consider his conduct especially serious due to the integral position he holds within that group, whereby he has primary responsibility for the operation and expansion of the Hells Angels OMCG Darkside Chapter, and that he has a degree of influence over the criminal activities of the club's members.
Having so reasoned (and by implication having concluded – no point being taken that there is not any express finding) that the Applicant’s removal would be in the national interest, the Minister proceeded to give consideration sequentially to matters relevant to the exercise of his discretion. Those he identified as relevant were the expectations of the Australian community; the best interests of minor children; the strength, nature and duration of the Applicant’s ties to Australia; and the extent of impediments if he were to be removed. It is uncontentious that the Minister accepted that some of those considerations, in particular the best interests of minor children, weighed in favour of non-revocation. The Minister also accepted that the Applicant would experience some practical and emotional hardship if he was to be returned to New Zealand.
The Minister explained the decision he ultimately made in the exercise of his discretion as follows:
78.In deciding whether to exercise my discretion to cancel Mr FEPULEAI's visa, I have given primary consideration to the best interests of Mr FEPULEAI's children and have found that their best interests would be best served by not cancelling the visa. I have also considered the impact of a cancellation decision on Mr FEPULEAI's, wife and other family members and social networks, and the contributions Mr FEPULEAI may have made, which favour non-cancellation. Moreover I have considered the extent of the impediments he would face upon return to his home country amongst other things. I find that the above factors weigh in favour of not cancelling Mr FEPULEAI's visa.
79.I have weighed up the above countervailing considerations against the national interest considerations, in particular I considered the risk posed to the Australian community by Mr FEPULEAI's continued presence in Australia, taking into consideration his past criminal and other serious conduct, including his role as a senior member of the Hells Angels OMCG, an organisation that has been and is involved in criminal activity. Non-citizens such as Mr FEPULEAI who commit such offences and engage in such other serious conduct should not generally expect to be permitted to remain in Australia.
80.I find that the Australian community could be exposed to significant harm should Mr FEPULEAI engage in further criminal conduct, or other serious conduct through his leadership, membership and association with the Hells Angels OMCG. I could not rule out the possibility of further criminal or other serious conduct by Mr FEPULEAI. The Australian community should not tolerate any risk of further harm.
81.I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa.
82.Furthermore, and separately from the considerations relating to the risk of harm posed by Mr FEPULEAI, I have considered that the Australian community generally would expect noncitizens who have who have engaged in criminal and other serious conduct including OMCG membership to not hold a visa.
83.I found that the considerations favouring non-cancellation are insufficient to outweigh the serious national interest considerations. Therefore, I have decided to exercise my discretion to cancel Mr FEPULEAI' s Class TY Subclass 444 Special Category (Temporary) visa under s501(3)(b) of the Act.
THE APPEAL
The Applicant advances a single ground of review as follows:
The Minister misunderstood or misconstrued key evidence and, in doing so, misdirected himself in the exercise of his power under s501(3) of the Migration Act 1958 (Cth).
Particulars
(a)Section 501(3) confers on the Minister a discretion to cancel a visa where he reasonably suspects that a person does not pass the character test and he is satisfied that cancellation is in the national interest.
(b)Prior to lawfully exercising this discretion, the Minister must first turn his mind to the question of whether he has formed the reasonable suspicion required to enliven the power that the person does not pass the character test and then consider whether he is satisfied that cancellation is in the national interest (s501(3)(c)-(d)).
(c)Once the Minister is satisfied of these matters, he has a residual discretion to decide whether to cancel under s501(3).
(d)As part of the Minister’s consideration of the national interest in this decision, the Minister engaged in an assessment of the risk of harm to the Australian community between paras [45] and [55] of his decision.
(e)The Minister summarises his key findings at para [38] that ‘Taking into account Mr FEPULEAI’s rank and position of authority within the Hells Angels OMCG, I accept Victoria Police’s assessment in their report that Mr FEPULEAI ‘uses members of his OMCG as a way for him to avoid detection and any links to illegal activity and to make money for himself and the club.’
(f)It should be inferred that this finding is made in reliance on the annexed report entitled Victoria Police Visa Cancellation Referral Package: OMCG Non-citizen submission, dated 3 June 2020, specifically, the following finding at para [46] of that report;
It would be fair to suggest that FEPULEA, as Club president of the OMCG, uses members of his OMCG as a way for him to avoid detection and any links to illegal activity and to make money for himself and the club. [emphasis added]
(g)The Minister’s paraphrasing of the evidence of the Victoria Police constitutes a misunderstanding and clear misstatement of that evidence. The Minister’s conclusion that the Applicant uses members of the Hells Angels OMCG is different in nature and meaning to the original statement in that report, which, at its highest, represented a pontification or suggestion as to a state of affairs which could be the case.
(h)In other words, the Minister concluded as fact a hypothetical the Victoria Police only stated might be ‘fair to suggest’.
(i)It cannot be said that had the Minister properly construed this evidence, the outcome could not have been affected. The Applicant’s membership of the OMCG, his alleged association with OMCG office holders, members and supporters, was a fundamental plank in the Minister’s conclusion at para [58];
The information concerning (the Applicant’s) engaging in criminal conduct and other serious conduct through his membership of the Hells Angels OMCG and his association with OMCG office holders, members and supporters, together with my finding regarding the risk to the community posed by (the Applicant) engaging in criminal or other serious conduct in the future, raised concerns that were of such a serious nature that I concluded the use of my discretionary power to cancel…the visa…without prior notice, is in the national interest.
(j)The error is therefore material to the decision, and the decision is affected by jurisdictional error.
As noted above, the Applicant seeks certiorari to quash the Minister’s decision, an injunction restraining the Minister or his agents from removing him from Australia during these proceedings, and costs.
The Applicant’s Submissions
The Applicant submits that by reason of the Minister misunderstanding or misconstruing key evidence in the exercise of his powers to cancel the Applicant’s Visa, the Minister fell into jurisdictional error. The key evidence that the Applicant submits the Minister misunderstood or misconstrued is that which was contained in paragraph [46] of the Report. That paragraph is as follows:
46.It would be fair to suggest that FEPULEA, as club President of the Hells Angels OMCG, uses members of his OMCG as a way for him to avoid detection and any links to illegal activity and to make money for himself and the club.
The Applicant submits that it is self-evident that the words “it would be fair to suggest” as preface the conclusion stated were disregarded by the Minister when he purported at [38] of his reasons to accept Victoria Police’s statement at [46] as having been its “assessment”. Counsel for the Applicant Mr Smorchevsky submits that what is stated at [46] in the Report was not open to be understood by the Minister as a statement of fact or a conclusion that had been reached by Victoria Police. Rather he submits, on a plain reading, that what Victoria Police had advised the Minister in that paragraph of the Report, taken at its highest, was no more than what reflected its “tentative, hypothetical and suggestive” thinking.
The Applicant’s written submissions detail what is said to flow in consequence of that error as follows:
10. Importantly, the statement in the Report was not expressed as a conclusion about a matter of fact. Rather, it is expressed tentatively or hypothetically, as being something which may be open for someone to suggest, but it falls short of saying that Victoria Police have actually reached the conclusion that the matters quoted by the Minister are in fact correct.
11. The Minister’s statement in the Reasons that “I accept Victoria Police’s assessment” followed by his quotation of part of the Report shows that the Minister was intending to accept that quoted part of the Report because Victoria Police had made it as an assessment. In other words, the Minister understood that the part which he quoted from the Report was the conclusion reached by Victoria Police which he could “accept”.
12. However, the Report did not reach the conclusion which was quoted by the Minister. Rather, the Report stated that “It would be fair to suggest” the matter which was quoted by the Minister. That falls short of something which is open simply to be accepted as though it had been a concluded fact. It would have been necessary for the Minister to consider whether or not to make that finding in light of all of the available material, and it was not open simply to “accept” the quoted part of the Report.
13. The tentative, hypothetical and inconclusive nature of the statement in the Report is reinforced by a constituent distinction in other parts of the Report between statements of concluded fact and statements falling short of that.
14. The Report contains statements that something “is widely accepted” (CB 13 [3]), that something “is believed to be an alias” (CB 13 [7]), that the applicant’s “current employment status is not known” (CB 15 [17]), that something “clearly demonstrates his network” (CB 16 [24]), that a “feud seemingly ended” (CB 17 [33]), that “there is no intelligence to suggest” something (CB 18 [35]), and that “There is evidence supporting the belief” (CB 18 [39]).
15. There is nothing to suggest that the tentative statement in the Report at CB 19 [46] was intended to be a concluded statement of fact regarding the matters set out in it. It should be construed consistently with the balance of the Report as a tentative or hypothetical statement and not a conclusion capable of being accepted as a matter of fact.
16. The Court should find that the Minister misconstrued or misunderstood the evidence of Victoria Police upon which he relied.
17. In Akers v Minister for Immigration & Ethnic Affairs (1988) 20 FCR 363, it was observed at 373 by Lee J that:
“To proceed to a decision upon the misapprehension of matters material to the decision, may be described as an improper exercise of power: see Minister for Immigration and Ethnic Affairs v Raj-Ismail (1982) 57 FLR 133 at 141-142 and 162·163; 40 ALR 341 at 348 and 365 and Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs (983) 74 FLR 348 at 359-360; 51 ALR 561 at 359-360.”
The Applicant submits that the error the Minister fell into was of significance. The argument he advances is as follows:
18. That evidence which the Minister misconstrued or misunderstood was a key part of the material relevant to the Minister being satisfied that cancellation of the applicant’s visa was in the national interest under s 501(3)(d) of the Act, and it was also key to the Minister’s decision as to why the discretion under s 501(3)(b) ought to be exercised in favour of cancellation of the applicant’s visa, despite various countervailing matters, for the following two reasons.
19. First, the Minister could only exercise the power to cancel the applicant’s visa under s 501(3)(b) of the Act if the Minister was “satisfied that the […] cancellation is in the national interest” (s 501(3)(d)).
20. The issue of whether cancellation of the applicant’s visa was in the national interest was considered in a specific section of the Reasons: at CB 204-208 [59]-[83]. The error in the reasoning process at CB 201 [38] formed part of that section. The Minister’s conclusion at the end of that section was that:
“In sum the information concerning Mr FEPULEAI’s engaging in criminal conduct, and other serious conduct through his membership of the Hells Angels OMCG and his associations with OMCG office holders, members and supporters, together with my finding regarding the risk to the community posed by Mr FEPULEAI’s engaging in criminal or other serious conduct in the future, raised concerns that were of such a serious nature that I concluded that my use of my discretionary power to cancel Mr FEPULEAI’s [visa], without prior notice, is in the national interest”: at CB 204 [58] (emphasis added)
21. The Court ought to infer that the Minister’s references to “other serious conduct” included the findings which are the subject of the error at CB 201 [38]. That is reinforced by the fact that section containing the error is entitled “Other serious conduct – Criminal Association – OMCG membership”, and by the fact that the section concluded by stating that the applicant:
“has engaged in other serious conduct by being a member of the Hells Angels OMCG and through his associations with other OMCG members and supporters. I consider his conduct especially serious due to the integral position he holds within that group, whereby he has primary responsibility for the operation and expansion of the Hells Angels OMCG Darkside Chapter, and that he has a degree of influence over the criminal activities of the club’s members”: at CB 202 [41] (emphasis added)
22. The Court ought to find that the finding which was the subject of the error was a significant part of the Minister’s reasoning process in concluding that it was in the national interest to cancel the applicant’s visa, being a condition of the exercise of the power in s 501(3)(b), such that the Minister’s decision was based upon that finding, and there was a realistic chance that that conclusion and the Decision would have been different if that error had not occurred.
The Applicant submits that the same error also contaminated the Minister’s weighting of the discretionary factors he had given attention to. In that regard the Applicant submits:
28. It should also be borne in mind that the only “criminal conduct” which the Minister found the appellant to have engaged in was acknowledged by the Minister to have been “on a relatively minor scale”: at CB 200 [32]. It should be inferred that the “other serious conduct” was more significant as a factor weighing in favour of cancellation of the applicant’s visa, including the findings the subject of the error.
29. The Court ought to infer that the Minister would have conducted a different weighing process if the Minister had not made that error, and that the factors which the Minister considered in the exercise of his discretion would have weighed more towards exercising the Minister’s discretion not to cancel the applicant’s visa in that case.
Mr Smorchevsky submits that if the error was found to have been made, the Court would conclude it was a jurisdictional error. It was not in dispute that a number of other factors the Minister had given attention in the exercise of his discretion had been accepted to weigh in favour of the Applicant being permitted to remain in Australia. The Court therefore should conclude, Mr Smorchevsky submits, that there was a realistic chance that the Minister could have reached a different conclusion had the Minister not made the error that he did.
During oral argument, the Court drew Mr Smorchevsky’s attention to the circumstance that the passage at [46] is to be found in the Report under the heading “Assessment of risk the person poses to the Australian community,” and appears to be one of three short paragraphs of the Report in which Victoria Police had summarised its conclusions. The paragraph immediately preceding [46] was:
45.Victoria Police asses FEPULEAI to be a significant risk to Victoria and the Australian Community.
The paragraph that follows [46] was:
47.His history of violence, current position of authority ad influence within the Hells Angels OMCG, afford him the opportunity to cause unmeasurable levels of harm.
Having regard to the context in which [46] is located in the Report, the Court sought Mr Smorchevsky’s response to the proposition that read fairly in context, notwithstanding it being expressed as something that “it would be fair to suggest” what had been stated at [46] might be understood as Victoria Police’s assessment of why it had concluded that, notwithstanding he had been convicted of only three relatively minor offences during the period he had been a resident in Australia, it would be fair to conclude that the Applicant had been deeply engaged in criminal conduct. Read in such a context could it not be understood as Victoria Police’s “assessment” that notwithstanding his few convictions that that was a fair conclusion to draw given the Applicant had complete authority over those who undertook the “business interests” of the Darkside Chapter of the Hells Angels. The Report at [29] had referred to the business interests of the OMCG as including drug dealing, trafficking in stolen goods, firearms, extortion and prostitution.
In response, Mr Smorchevsky submitted that the text of [46] was controlling. The tentative, hypothetical and inconclusive language in which it was expressed was intractable. It precluded the Minister from relying on it as an “assessment”. It was not open to the Minister to rely on what Victoria Police had speculated might be a possibility and then to misuse that tentative observation to link the unchallenged criminal conduct of the Hells Angels with unspecified “other serious conduct” the Minister then assumed (on that false premise) that Applicant had actually directed or himself participated in. Without [46] to serve as the link there was nothing to connect the criminal activities of the Hells Angels with the conduct of the Applicant. Mr Smorchevsky further submitted that there was nothing before the Minister, save as arose by reason of his misunderstanding of the import of paragraph [46] as could justify him finding that the Applicant had been enabled by his senior membership of the Hells Angels to avoid prosecution or hide his own criminality.
The Court then drew Mr Smorchevsky’s attention to the premise that even if that submission was to be accepted the Applicant bore the burden of proof of establishing that there was a real and not merely derisory possibility that a different outcome could have been arrived at if the error was to be accepted as going to jurisdiction. In drawing attention to the Applicant being required to discharge that burden the Court referred Mr Smorchevsky to a number of other findings the Minister had made which the Applicant had not sought to put in issue. Those had included:
18. As the President, Mr FEPULEAI effectively controls the 'Darkside Chapter' of the Hells Angels OMCG and its business interests. The Victoria Police report details that Mr FEPULEAI is to be trafficking and dealing in drugs, that he possesses unregistered firearms and that he has been involved in an aggravated burglary (untried). The Victoria Police report also details the circumstances of his known and proven criminal offending.
…
36. I considered the information set out above under the 'character test', and the Victoria Police report which identified Mr FEPULEAI as the 'President' of the Darkside Chapter of the Hells Angels OMCG. As the 'President' of an OMCG chapter, Mr FEPULEAI has effective control over the club and its business interests. He also has control over all of the members of the Darkside Chapter and has the right to veto decisions made by members concerning club business. Mr FEPULEAI can authorise his subordinates, particularly the 'Sergeant at Arms', to use violence in dealing with other club members who have disobeyed club rules.
37. The Victoria Police report indicates that Mr FEPULEAI associates with other OMCG members, particularly the Red Devils OMCG and senior office bearers of other Hells Angels chapters. Mr FEPULEAI’s degree of influence extends beyond his chapter's territory and across Australian state lines. Mr FEPULEAI has been observed by law enforcement authorities attending Hells Angels club members' funerals in different states/territories of Australia and participating in interstate 'runs'.
…
39. I note the Victoria Police report identifies that the Hells Angels OMCG business interests often include legitimate enterprises such as gyms, tattoo parlours, haulage companies and operations within the security industry. Most concerning is that the Hells Angels OMCG ventures also include illegitimate enterprises. According to the Victoria Police report, 'Numerous police and international intelligence agencies classify the Hells Angels as one of the "big four" motorcycle gangs, and contend that members carry out widespread violent crimes, including drug dealing, trafficking in stolen goods, firearms, and extortion, and are involved in prostitution'.
…
41. I find that Mr FEPULEAI has engaged in other serious conduct by being a member of the Hells Angels OMCG, and through his associations with other OMCG members and supporters. I consider his conduct especially serious due to the integral position he holds within that group, whereby he has primary responsibility for the operation and expansion of the Hells Angels OMCG Darkside Chapter, and that he has a degree of influence over the criminal activities of the club's members.
…
53. Taking into account Mr FEPULEAI's criminal history and his influence as the President of the Hells Angels OMCG Darkside Chapter and extensive network of criminal associates, I agree with the assessment in the Victoria Police report, that with Mr FEPULEAI's personal history of violence, and his current position of authority and influence within the Hells Angels OMCG, he has the opportunity to cause unmeasurable levels of harm to the Australian community.
In response Mr Smorchevski submitted that had the link between the Hells Angels’ undisputed criminal conduct and that assumed to have been undertaken by the Applicant (based on a misreading or misunderstanding of paragraph [46] of the Report) not been drawn by the Minister, it could not be discounted that the the Minister might have reached a different conclusion with respect to the national interest and/or in regard to his weighing of discretionary factors.
In the latter regard Mr Smorchevsky notes that Ms Symons does not dispute that the Minister acknowledged that there had been significant factors that weighed in favour of non-revocation. He submits that if the factors the Minister had put into the balance had not included the Minister’s mistake with respect to what the Report had stated at [46] and what flowed from that error the Court would be entitled to conclude that the balance might have shifted and the outcome could have been different.
The Minister’s Submissions
On the Minister’s behalf Ms Symons submitted that the Minister had been correct to have referred to what paragraph [46] conveyed as Victoria Police’s “assessment”. That it was properly to be so understood was apparent when regard was given to the fact that it appeared in the Report under the heading “Assessment of risk the person poses to the Australian community”. Each of the three short paragraphs under that heading were clearly intended to and did represent Victoria Police’s (summarised) assessment of the risk the Applicant posed to the Australian community. The words used in [46] of the Report were not be read in isolation. Read in context as part of the Report as a whole it was plain that that which was stated at [46] was not open to be characterised as tentative or inconclusive. What was stated at [46] conveyed, if read fairly in context, a conclusion that Victoria Police had reached. The Minister had not fallen into error by proceeding on that understanding.
Ms Symons submits that even if that submission is rejected, the error made would not amount to jurisdictional error. When regard is had to the other uncontested findings made by the Minister the Court would reject that Applicant had discharged his burden of proof relevant to materiality as would demonstrate that a different decision could have been reached.
Because of the conclusion I have reached as explained below, it is unnecessary refer further to Ms Symons’ submissions. Insofar as it is appropriate to refer to one particular submission, I will do so later in my reasons.
CONSIDERATION
Mr Smorchevsky’s submissions appear to be premised on an assumption that what the Minister refers to in his reasons as being the “other serious conduct” that he was satisfied the Applicant had engaged in, must refer to some additional and unidentified form of criminal conduct not inherent in his role as President of the Darkside Chapter of the Hells Angels. I see no basis for that assumption. Having regard to the Minister’s reasons as a whole I reject that I should proceed on the basis that the Minister made any such additional finding(s) of other serious conduct.
The Applicant does not contest that the Minister was entitled to find (as he did) that the Hells Angels business interests included drug dealing, trafficking in stolen goods, firearms, extortion and prostitution. If needs be said I am satisfied that a submission advanced in oral argument, that in so far as the Report refers to the Applicant’s control over the Hells Angels business dealings it was open to being understood as confined to their legitimate business interests is entirely implausible. In that regard I observe that the Report advised the Minister as to the consequences of the Applicant’s removal from Australia as follows:
The removal of [the Applicant] from Australia will disrupt the structure of the Hells Angels OMCG across Victoria and reduce the potential for ongoing criminal activity, in particular gang related violence in community locations and other intimidation related offense. (sic)
That assessment is entirely inconsistent with Victoria Police having reservations as to the Applicant being in control of all of the Chapter’s “business interests”.
The Applicant does not challenge the Minister’s finding at [36] that as President of the Hells Angels Darkside Chapter the Applicant had the right to veto any decisions made by its members concerning the Chapters’ business interests. Nor does he challenge the Minister’s finding that in that role the Applicant had the right to authorise the Darkside Chapter’s Sergeant at Arms to use violence to deal with any club members who disobeyed club rules.
No challenge is made to the Minister’s finding at [37] that the Applicant’s degree of influence already had extended across state lines and his finding at [41] that the Applicant had primary responsibly for, inter alia, the expansion of the influence of the Hells Angels Darkside Chapter.
No challenge is made to the Minister’s reliance at [53] on the Report’s uncontested assessment that the Applicant’s personal history of violence and his position of authority and influence provided him with the opportunity “to cause unmeasurable levels of harm to the Australian community”.
It is against that background that I am satisfied that Ms Symons must be correct to submit that it was properly open to the Minister to accept as Victoria Police’s “assessment” that which the Report states at [46]. As Ms Symons submits, what is stated at [46] appears as one of three short paragraphs under the heading “Assessment of risk the person poses to the Australian community.” Although what [46] records by way of that assessment is expressed in a different manner to its assessments as appear at paragraphs [45] and [47] I am satisfied that that is because what Victoria Police was stating as its assessment at [46] is its explanation of an absence – that absence being the want of the Applicant having acquired a more substantial criminal record of convictions that might otherwise be expected in the circumstances of a serious criminal. It is what Victoria Police advanced to the Minister regarding what it had assessed to be a fair inference or fair explanation of that circumstance.
I reject that the Minister fell into error by not proceeding on the basis that what the Report states at [46] was only tentative, hypothetical and suggestive.
Having regard to the context in which [46] of the Report is located and the heading under which it appears, I reject as absurd that the Minister ought to have read that paragraph as casting doubt on or reflecting uncertainty on Victoria Police’s part that the Applicant had directed the criminal business activities of the Darkside Chapter. In context, [46] was an assessment that had been made by Victoria Police. That assessment was responsive to the acknowledged fact that despite his central role in an OMCG the Applicant had few actual convictions. In that context, [46] records Victoria Police’s assessment as a fair conclusion to be drawn in that circumstance.
I reject that the Minister erred by accepting that assessment and drawing that conclusion.
Moreover, I also accept Ms Symons’ further submission that the Minister did not adopt Victoria Police’s assessment as expressed in the Report at [46] in an unthinking way. The Minister’s reasons explain that he had accepted that assessment “after taking into account [the Applicant’s] high rank and position of authority within the Hells Angels OMCG”. Given the terms of the Minister’s earlier findings as I have set out above, I reject that the Minister was simply parroting the conclusions of the Report at [46] having misunderstood its import. I am satisfied that instead, the Minister gave independent consideration to whether such a conclusion was open to him and ought to be drawn. I reject that that there was any legal unreasonableness in his making the finding he ultimately recorded.
I reject that the premises of Ground 1 are made out.
Further, assuming I am in error in the above, I accept Ms Symon’s submission that the Applicant has not discharged his burden of proof as would leave open the possibility that (on this premise) the error could, had it not been made, resulted in a different result.
Having regard to the many blunt findings that the Minister recorded as I have set out at [26] above, none of which have been suggested to have been reached in error I am entirely unpersuaded that there would be more than a derisory chance that a different outcome could have been reached had the Minister dealt with paragraph [46] of the Report on the premise that it was not in fact an “assessment”.
CONCLUSION
The Applicant’s application must be dismissed.
The parties are agreed that, in that event, costs should follow. The Applicant must pay the Minister’s costs as agreed or in default or agreement, as assessed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr. Associate:
Dated: 24 March 2021
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